Clenbuterol, Harness Racing and Administrative Law

To impress a love interest, the Allen character travels to the mythical banana republic of San Marcos to help a band of revolutionaries oust its ruthless ruler. When the revolutionaries prove successful, their leader declares himself El Presidente, and immediately pronounces that the nation’s new official language is Swedish; that underwear will be worn on the outside at all times and that all children under sixteen… are now sixteen!

Real laws can sometimes appear to be as ridiculous as fictional ones. Laws often sound absurd because the facts and circumstances that justified their promulgation have drastically changed. Consider that until relatively recently it was still illegal in New York City to shoot pigeons off the decades-ago extinct Fifth Avenue trolley. Occasionally, deep-rooted traditions are clung to long after everyone else has discarded them. So, while most American jurisdictions have abandoned laws preventing retail businesses from operating on the Christian Sabbath, Bergen County, New Jersey still enforces so-called “Sunday blue laws.”

Then again, some real laws appear ridiculous simply because they are ridiculous.

Is there a check or limit on what laws a legislature may create? The only true test is whether the law squares with the Constitution. Unless completely devoid of all logic, an otherwise constitutional law will stand. In a 2008 U.S. Supreme Court decision that upheld a completely arcane law concerning the election of judges, Justice John Paul Stevens took note that his late colleague, Justice Thurgood Marshal, was quite fond of saying, “The Constitution does not prohibit legislatures from enacting stupid laws.”

While legislatures have wide latitude in their power to make laws, administrative agencies are much more restricted in their ability to pass rules and regulations. The distinction is important, because in most jurisdictions, harness racing is heavily controlled via administrative rulemaking.
As a creation of the legislature, an administrative agency may only act in the limited manner that the statute which enables it permits. In most jurisdictions, when an administrative regulation is challenged by someone affected, it will be upheld only if it has a rational basis and is not unreasonable, arbitrary or capricious. In other words, the rule must not just be constitutional; it must also make sense.

The additional strictures placed upon administrative rulemaking are many. In New York, for example, the State Administrative Procedure Act mandates that an agency consider in its rulemaking the utilization of approaches which are designed to avoid undue deleterious economic effects or overly burdensome impacts of the rule upon persons. Further, New York law requires agencies to prepare a ‘needs and benefits statement’ for each proposed regulation setting forth the purpose of, necessity for, and benefits derived from the rule. Moreover, the agency must provide a citation for and summary, not to exceed five hundred words, of each scientific or statistical study, report or analysis that served as the basis for the rule, an explanation of how it was used to determine the necessity for and benefits derived from the rule, and the name of the person that produced each study, report or analysis.

Additionally, New York specifically requires administrative agencies to give due consideration to the impact a proposed regulation may have on small businesses and rural areas, and to provide flexibility, even to the extent of exempting some from coverage by the rule, or by any part thereof, so long as the public health, safety or general welfare is not endangered.

Further, unlike legislated laws, rules and regulations proposed by agencies must undergo a public comment period before their enactment is considered final. In this vein, the agency may choose to hold a public hearing to better understand how proposed rules impact communities, industries or segments thereof.

Against this backdrop, the New York State Gaming Commission recently considered a series of proposals put forth by the Racing Medication and Testing Consortium in the RMTC’s quest to establish uniform medication rules in all racing jurisdictions. While the official position of the United States Trotting Association is that uniformity across the states is desired, the USTA requires that the standardized rules must comport with the specific needs of harness racing. In this regard, the RMTC proposals have in many ways proven to be centered solely on the wants and desires of Thoroughbred racing, as well as the customary training and racing attributes of their horses, without the least bit of concern for the Standardbred industry. The RMTC pitch regarding the administration of Clenbuterol is but one glaring example.

Clenbuterol is a therapeutic medication used as a bronchodilator. While some question its effectiveness, others swear by its curative and restorative qualities, and urge that there are no legitimate alternatives to treat common respiratory ailments in horses. At least one scientist has put forth a study that long term use of the drug could be associated with heart failure. Yet, neither the purported safety nor efficacy of the medication was the driving force behind the RMTC’s submission to the various racing commissions.

The RMTC’s position is that prolonged use of Clenbuterol has a ‘repartitioning’ effect in horses. This means that in certain quantities over certain periods the substance may turn fat into muscle, and thus has a mechanism ostensibly similar to anabolic steroids. Does it, and if it does, how long of an administration is required to cause such an effect? In truth, there are no good peer reviewed scientific studies on the matter.

Nonetheless, RMTC recommends that the Clenbuterol withdrawal time for all racehorses be established at 14 days. This means that any administration of the medication given at any time within the 14 day period before a race would be a violation. Such administration would be determined by a scientifically-established threshold. If a race day specimen contained more than the threshold, the assumption would be that the medication was given within the prohibited timeframe.

In New York, the previous Clenbuterol withdrawal time for both breeds was 96 hours. The Thoroughbred rule was recently changed to 14 days, and late last year the Gaming Commission proposed a similar 14-day withdrawal time for Standardbreds.

Are Thoroughbreds and Standardbreds the same animal? Hardly. While classified as the same species, Standardbreds have been a closed breed since the late 1800s, with Thoroughbreds being a pure breed for at least a century before. It doesn’t require a science degree to perceive that the breeds are distinguishable in both the conformation and temperament of its members.

Some argue that despite the foregoing, there remains a physiological identity to all horses. On this point, consider that there is an open question as to whether the supposed increase in muscle mass some attribute to the medication occurs with equal effect, or at all, in Standardbreds. One consideration is that Thoroughbreds have a high percentage of fast-twitch skeletal muscle fibers, while Standardbreds fall into an intermediate range. Such fact would infer that the purported repartitioning effect cannot be lumped upon the entire species. Again, studies are sparse, and legitimate studies involving racehorses are non-existent.

Even more relevant, while members of both breeds might share an equal 64 chromosomes, the marked differences in both the husbandry and placement in service of the distinct breed members are undeniable. Gaits, surfaces, feeding and training routines are all patently dissimilar. The glaring difference, however, is in the frequency with which the breed members compete.

The average Thoroughbred makes fewer than 7 starts per year. Whether due to physical necessity or the lack of opportunity offered by the condition book, most runners get several weeks off between races. Standardbreds, on the other hand, race weekly during most of the year. This is especially true when a horse is competing in a high-end elimination series. Thus, the irony is that while a 14-day rule would still present ample opportunity for “loading-up” Thoroughbreds with Clenbuterol for non-therapeutic purposes, the rule for once-a-week harness horses would simply prevent use of the medication as a legitimate treatment option. What is more, the present 96 hour rule prevents an ulterior illicit use of the medication in weekly-competing Standardbreds, since the administration of the substance would be limited to scant days between races.

In sum, a 14 day withdrawal rule for Standardbreds would not simply be nonsensical, but also would prove to completely damaging to the health, safety and welfare of horses that industry regulators are charged to protect.

It is for all the foregoing reasons that the USTA, in conjunction with New York’s harness horsemen and assisted by equine scientists and practicing veterinarians, made its case against the 14-day rule in a January public hearing before the N.Y. Gaming Commission.

Subsequent to the hearing, the Commission proposed a modified rule. The modification retains a 96 hour pre-race withdrawal period for harness racing, with the exception that if the horse has not raced for a period in excess of 30 days and needs to qualify, that the 14 day withdrawal rule will be in effect for its first race back.

In this regard, the Commission has acted in a way consistent with its mandate to do what is both rational and sensible while protecting the health and safety of the horses and the welfare of the horsemen and wagering public. The breed-specific rule ensures that competing harness horses will not denied a necessary therapeutic medication, and also makes certain that one on an extended layoff will not be administered the substance in a way that might cause performance enhancement.

Perhaps RMTC will take the hint. Authoritarian regulations that provide strict and inflexible blanket commands which intentionally ignore conspicuous nuances so as to affect one segment of an industry over others might be expected from the ruling junta in San Marcos. Such edicts shouldn’t be generated by a group that is purported to be based in science and objectivity.

Finally, those that believe they can steamroll ill-advised rules by threatening the resistant with government intervention and oversight should take pause; New York government just joined the resistance.

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.